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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC) and cross-exceptions filed by the Respondent. The Respondent filed an opposition to the GC’s exceptions, and the GC filed an opposition to the Respondent’s cross-exceptions.

The amended complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with § 7114(a)(2)(A) of the Statute when it held a formal discussion regarding an Equal Employment Opportunity (EEO) complaint filed by an individual bargaining-unit employee (the employee) without providing the Union with notice and an opportunity to be present. The Judge found that the Respondent had not violated the Statute as alleged and recommended an order dismissing the complaint.

For the following reasons, we reverse the Judge and find that the Respondent violated the Statute as alleged in the complaint.

II. Background and Judge’s Decision

A. Background

The facts are set forth in detail in the Judge’s decision and are only briefly summarized here. The employee filed a formal EEO complaint regarding the Respondent’s failure to grant him a reasonable accommodation for a work-related disability. He was not represented by the Union in the processing of his EEO complaint. In an attempt to resolve the EEO complaint, the Respondent and the employee agreed to hold a mediation session with a certified mediator from the Investigations and Resolutions Division of the Department of Defense.

Prior to the mediation, the Respondent’s Equal Opportunity (EO) Director and the employee had a conversation in which the employee stated that he did not want the Union to be present at the mediation.[2]See Judge’s Decision at 3. The Respondent subsequently sent the employee a “Formal Complaint [Alternative Dispute Resolution (ADR)] Election” form. Id. As relevant here, the employee initialed on the line of that form that states: “I object to having the [U]nion’s presence at the mediation and request [that it] not be present.” Id. at 4.

The mediator, the employee, and the employee’s third-level supervisor (at the time of the incidents alleged in the formal EEO complaint) participated in the mediation. The mediation was held in the Respondent’s EO office, which is separate from the employee’s and the third-level supervisor’s work areas. The mediation ended without a resolution.

Subsequently, the employee informed the Union President that there had been a mediation regarding his EEO complaint. See id. at 5. This was the first time the Union was notified that a mediation had been scheduled or held. See id. The Union filed a ULP charge, and the GC issued a complaint, alleging that the Respondent had violated § 7116(a)(1) and (8) of the Statute by failing to comply with § 7114(a)(2)(A) of the Statute when it held a formal discussion regarding an EEO complaint without providing the Union with notice or an opportunity to be present.[3] The Respondent admitted in its answer that it held the meeting without informing the Union but noted that the employee had requested that the Union not be present. See id.

B. Judge’s Decision

Applying Authority precedent, the Judge found that the mediation session was a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. See Judge’s Decision at 7-11 (citing SSA, Office of Hearings & Appeals, Boston Reg’l Office, Boston, Mass., 59 FLRA 875, 878 (2004) (SSA, Boston); U.S. Dep’t of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304 (2001) (Chairman Cabaniss dissenting), aff’d sub nom. Dover Air Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover); Luke Air Force Base, Ariz., 54 FLRA 716 (1988), rev’d sub nom. Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999), cert. denied, 531 U.S. 819 (2000) (Luke I)). In so finding, the Judge addressed the Respondent’s argument that EEO complaints filed under the Equal Employment Opportunity Commission’s (EEOC’s) statutory appeals process are not grievances within the meaning of § 7114(a)(2)(A), and she acknowledged that the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) had adopted that view in Luke Air Force Base v. FLRA, 308 F.3d 221. However, the Judge found that “the Authority [has] expressly rejected” this argument in decisions that followed Luke Air Force Base v. FLRA. Judge’s Decision at 10 (citations omitted). Finding that “this case presented no new facts to distinguish it from those prior cases[,]” the Judge concluded that the mediation session involved a grievance within the meaning of § 7114(a)(2)(A) of the Statute. Id.

In addition, the Judge rejected the Respondent’s argument that the Union’s exclusion from the session was warranted because there was a conflict between the Union’s institutional rights under § 7114(a)(2)(A) and the employee’s individual rights under the Alternative Dispute Resolution Act (ADR Act) and other statutes governing confidentiality. According to the Judge, the Respondent “presented nothing persuasive that has not already been considered and rejected by the Authority[]” in previous decisions Id. at 7.

Next, the Judge considered whether the employee’s objection to the Union’s presence at the mediation “abrogated” the Union’s statutory right to prior notice and an opportunity to attend the mediation. Id. at 11. The Judge stated that, in NTEU v. FLRA, 774 F.2d 1181 (D.C. Circ. 1985) (NTEU), when considering whether the union had the right to attend the interview of a bargaining-unit employee in preparation for a Merit Systems Protection Board (MSPB) hearing, the court stated:

in the case of grievances arising out of alleged discrimination on the basis of race, religion, sex or national origin, Congress has explicitly decided that a conflict between the rights of identifiable victims of discrimination and the interests of the bargaining unit must be resolved in favor of the former. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides that the right of an aggrieved employee to complete relief takes priority over the general interests of the bargaining unit. Similarly, a direct conflict between the rights of an exclusive representative under § 7114(a)(2)(A) and the rights of an employee victim of discrimination should also presumably be resolved in favor of the latter.

Judge’s Decision at 11 (quoting NTEU, 774 F.2d at 1189 n.12 (internal citations omitted)). Further, the Judge noted that, in Dover, 316 F.3d 280, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) found no inherent per se conflict between an EEO complainant’s rights and the union’s right to attend a formal discussion, but nevertheless stated in dicta that it did “not foreclose the possibility that an employee’s objection to union presence could create a ‘direct’ conflict that should be resolved in favor of the employee as described in footnote 12 of NTEU.” Judge’s Decision at 12 (quoting Dover, 316 F.3d at 287).

Applying the foregoing principles, the Judge credited the Respondent’s EO Director’s testimony that the employee had told her that “the Union’s presence would be a waste of time” and that, in response, she had sent the employee the ADR election form. Judge’s Decisionat 14. The Judge found that, on the form, the employee checked the box indicating that he did not want the Union to be present. Id. at 14-15. The Judge also found no evidence that the Respondent “coerced, manipulated or attempted to influence” the employee’s decision to object to the Union’s presence. Id. at 14. In addition, the Judge found that the employee “purposely objected” to the Union’s presence and was “aware of the consequences for the Union by the action that he took.” Id. at 14-15. Further, the Judge determined that the Respondent was not aware of the employee’s alleged motivation for not wanting the Union present and that the employee’s subsequent testimony regarding that motivation was “of no consequence.”[4]Id. at 15. Moreover, the Judge found that it was unnecessary for the Respondent “to go beyond” the employee’s signed objection form in order to get some explanation from the employee for the actions he took “in the face of such an explicit direction that the union not be present[.]” Id.

Citing Dover, the Judge determined that “the Union’s right to be present was superseded by the individual employee’s clear and specific objection to the Union’s presence.” Id. at 15. Accordingly, the Judge concluded that the Respondent’s failure to give the Union notice and an opportunity to be present at the mediation did not violate the Statute, and she recommended dismissing the complaint.

III. Positions of the Parties

A. GC’s Exceptions

The GC excepts to the Judge’s finding that the Union was not entitled to notice of, and an opportunity to participate in, the mediation session. Noting that the D.C. Circuit’s statement in NTEU referenced “a direct conflict” between the rights of an exclusive representative and the rights of an employee, the GC argues that it is necessary to identify “the competing rights that are involved, including the statutory or regulatory basis of such rights.” Exceptions at 3-4 (quoting 774 F.2d at 1189 n.12). In this connection, the GC asserts that both NTEU and Dover indicate that an employee’s objection to the Union’s presence would not create a direct conflict with a union’s right to attend a formal discussion “unless the employee’s objection was itself rooted in the exercise of a recognized statutory or regulatory right.” Exceptions at 5. According to the GC, “[i]nsisting that an employee’s objection be rooted in a recognized right would prevent a [u]nion from having to surrender its legal right to attend a formal discussion in favor of demonstrably frivolous, petty, or vindictive objections, including objections that are entirely illegitimate in nature, such [as] ones that are racially motivated.” Id.

Further, the GC contends that a “major flaw” in the Judge’s decision is that she never identified “the particular right” the employee was allegedly exercising through his objection to the Union’s presence. Id. at 6 (emphasis in original). In this connection, the GC claims that the employee’s objection “had absolutely nothing to do with any concerns over EEO-based rights[.]” Id. at 8. Rather, the GC states that the employee objected to the Union’s presence for the “fairly frivolous reasons[]” that he: (1) was upset that the Union previously had refused to take one of his grievances to arbitration; and (2) believed that the Union was entitled to be present and he was curious to see how the Respondent would react to his objection. Id. In addition, the GC argues that the employee specifically testified that his objection was “not based on any concerns over confidentiality, privacy interests, or that the Union’s presence might disrupt the mediation process.” Id. at 8-9. Based on the foregoing, the GC contends that the employee’s objection was “both subjectively (from the employee’s perspective) and objectively (from management’s perspective) unrelated to” any entitlements that the employee might have had as an EEO complainant. Id. at 9. Thus, the GC asserts that the objection was not sufficient to create a conflict, either direct or indirect, with the Union’s statutory right to be present.

By contrast, the GC asserts that the Union’s interest in attending the mediation of formal EEO complaints, as with other formal discussions, is “to represent the bargaining unit as a whole and to make sure that bargaining unit employee rights are not compromised.” Id. at 7. According to the GC, the Union’s presence at such meetings would permit the Union to: (1) track the effect of resulting settlement agreements on bargaining-unit employees; (2) observe the process and make sure that proper EEO procedures were being followed; and (3) identify whether the mediation process or any settlement agreements violated governing laws, rules, regulations, or contract provisions. Id. at 7-8.

The GC acknowledges that the EEOC has issued guidance that confidentiality is essential to the success of all ADR proceedings and concedes that there may be circumstances in which an employee’s objection to a union’s presence might involve the exercise of an EEO-based right to confidentiality. See id. at 8. However, the GC notes that, even if the employee’s objection could be construed as raising confidentiality concerns, the Authority has held that measures can be taken to ensure that confidentiality of a mediation session is addressed and maintained, such as through the use of confidentiality agreements by all participants, including the union representatives. See id. at 9-10 (citing U.S. Dep’t of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Member Armendariz concurring and Chairman Cabaniss dissenting) (Luke II)). The Union also notes that the Union President, who is a trained mediator, testified that he would conscientiously maintain the confidentiality of any mediation he attended. See Exceptions at 10.

B. Respondent’s Opposition

The Respondent argues that an individual’s EEO rights must prevail over a union’s institutional rights to be present at a formal discussion under § 7114(a)(2)(A) because the union’s role in that context is more restricted than its role under the parties’ negotiated grievance procedure. See Respondent’s Cross-Exception & Opp’n at 3-4 (citing Luke II, 58 FLRA at 538 (Concurring Opinion of Member Armendariz); NTEU, 774 F.2d at 1189 n.12)).

C. Respondent’s Cross-Exceptions

The Respondent asserts that the Judge erred in finding that the mediation of a formal EEO complaint concerns a grievance within the meaning of § 7114(a)(2)(A) of the Statute. Respondent’s Cross-Exceptions & Opp’n at 7 (citing, inter alia, Luke I). The Respondent also asserts that the mediation of a formal EEO complaint is not a grievance for purposes of the Civil Rights Act and EEOC rules, and that the Civil Rights Act -- and not the Statute -- “is the governing statute.” Id. at 8-9.

The Respondent also asserts that requiring it to provide the Union with notice and an opportunity to be represented at the mediation of a formal EEO complaint violates the Civil Rights Act, the Privacy Act, the ADR Act, Supreme Court precedent, other federal court precedent, EEOC rules and mandates, EEOC case law, and the Statute. See id. at 1. In this regard, the Respondent asserts that the Civil Rights Act, EEOC rules and mandates, and case law are controlling and mandate confidentiality during the EEO process. Id. at 4. The Respondent claims that this mandate would be impossible if unions are allowed to attend the mediation of formal EEO complaints.

D. GC’s Opposition

The GC disputes the Respondent’s assertion that a formal EEO complaint is not a grievance within the meaning of § 7114(a)(2)(A) of the Statute. In this respect, the GC contends that the Authority has repeatedly held that an employee’s formal EEO complaint is a “grievance” that satisfies the subject matter requirement for a formal discussion under § 7114(a)(2)(A) and that this position has been upheld by the D.C. Circuit. GC’s Opp’n at 4 (citing U.S. Dep’t of the Air Force, Luke Air Force Base, Ariz. 59 FLRA 16, 23 (2003) (Chairman Cabaniss dissenting); Luke II, 58 FLRA at 533-34; Dover, 57 FLRA at 308-09; Luke I, 54 FLRA at 730-32).

According to the GC, Authority and D.C. Circuit precedent supports the Judge’s determination that the authorities cited by the Respondent -- EEOC statutory and regulatory authority, EEOC rules and guidelines, the Privacy Act, and the ADR Act -- do not prohibit a union’s presence at the mediation of a formal EEO complaint. GC’s Opp’n at 3 (citing Dover, 316 F.3d 280). Further, the GC notes that the Authority subsequently confirmed that permitting a union to attend the mediation of formal EEO complaints does not create a conflict with an employee’s right to confidentiality under the ADR Act, EEOC regulations, or the Privacy Act. See GC’s Opp’n at 3-4 (citing Luke II, 58 FLRA at 533-34). Finally, the GC reiterates that the employee’s objection to the Union’s presence did not create a direct conflict between the Union’s institutional interests and the employee’s right to confidentiality.

IV. Analysis and Conclusions

A. The mediation of a formal EEO complaint concerns a “grievance” withinthe meaning of § 7114(a)(2)(A) of the Statute.

In order for a union to have a right to be represented under § 7114(a)(2)(A) of the Statute, there must be: (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee’s representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. See SSA, Boston, 59 FLRA at 878; Dover, 57 FLRA at 306; Luke I, 54 FLRA at 723.

There is no dispute that the mediation session was a discussion, which was formal, between a representative of the Respondent and a unit employee. There also is no dispute that the Respondent did not give the Union notice and an opportunity to attend the session. Rather, the Respondent disputes the Judge’s finding that the mediation of the formal EEO complaint concerned a grievance. As stated by the Judge, although the Ninth Circuit agrees with the Respondent’s position, see Luke Air Force Base v. FLRA, the D.C. Circuit and the Authority have repeatedly rejected this approach and held that a formal EEO complaint is a grievance within the meaning of § 7114(a)(2)(A). See, e.g., Dover, 316 F.3d 280 (D.C. Cir. 2003), affirming 57 FLRA 304; Luke I, 54 FLRA at 723. Consistent with this D.C. Circuit and Authority precedent, we denythe Respondent’s cross-exception.

B. The Judge did not err by finding that the Union’s presence at themediation would not conflict with the Civil Rights Act, the Privacy Act,the ADR Act, EEOC statutory and regulatory authority, or EEOC rulesand guidelines.

With regard to the Respondent’s claim that the Union’s presence would violate the Civil Rights Act, the Privacy Act, the ADR Act, EEOC statutory and regulatory authority, or EEOC rules and guidelines, the Authority and the D.C. Circuit previously considered and rejected such claims. See, e.g., Luke II, 58 FLRA at 534-36; Dover, 316 F.3d at 286-87; Dover, 57 FLRA at 310. As found by the Judge, the Respondent has “presented nothing persuasive that has not already been considered and rejected by the Authority.” Judge’s Decision at 7. Accordingly, consistent with the above-cited precedent, we deny the Respondent’s cross-exception.

C. In the particular circumstances of this case, the employee’s objection to the Union’s presence at the mediation did not provide a basis for the Respondent to deny the Union’s statutory right to notice and an opportunity to be present.

In finding that the Union was not entitled to be present at the mediation, the Judge relied on the fact that the employee objected to the Union being present, effectively finding that such an objection, standing alone, is sufficient to trump the Union’s formal-discussion rights. For the following reasons, we find that the Judge’s decision is not supported by applicable law.

As an initial matter, there are “important policies and purposes behind the Statute’s formal discussion right.” Dover, 57 FLRA at 309. In this connection, “unions have an established interest in how allegations of discrimination are dealt with and resolved[.]” Id.Accord NTEU, 774 F.2d at 1188. In addition, “the processing of an individual complaint through EEO procedures can have an effect on the entire bargaining unit, which the union represents[.]” Dover, 57 FLRA at 309. In this connection, “by providing formal discussion rights for discrete grievances and not just general personnel policies, the Statute recognizes that the resolution of an individual employee complaint may have an impact on the rights of other unit employees.” Id. Accord Dep’t of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386, 1390 (10th Cir. 1993).

Although “neither the Authority nor the courts have ruled that unions have an absolute right to attend discussions about EEO complaints[,]” Dover, 57 FLRA at 309 (emphasis added), the Authority and the courts also have not held that an employee’s objection, without more, is sufficient to deprive a union of its formal-discussion right.[5] In this connection, as noted previously, the D.C. Circuit has stated that “a direct conflict between the rights of an exclusive representative under § 7114(a)(2)(A) and the rights of an employee victim of discrimination should . . . presumably be resolved in favor of the latter.” 316 F.3d at 286 (quoting NTEU, 774 F.2d at 1189 n.12 (emphasis added)). The D.C. Circuit also has stated that it did not “foreclose the possibility that an employee’s objection to union presence could create a ‘direct’ conflict that should be resolved in favor of the employee as described in footnote 12 of NTEU, 774 F.2d at 1189 n.12.” Dover, 316 F.3d at 287 (emphasis added). The referenced footnote from NTEU states that “Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides that the right of an aggrieved employee to complete relief takes priority over the general interests of the bargaining unit.” Id. (emphasis added).

As discussed previously, the Judge found, based on credited testimony, that the employee told the Respondent’s EO Director that “the Union’s presence would be a waste of time[,]” and the employee checked a box on an ADR election form to indicate that he did not want the Union to be present. Judge’s Decision at 14-15. Neither the employee’s comments to the EO Director nor his marking on the ADR election form cites any statutory “rights” or explains why the Union’s presence would interfere with any such rights. We find that, absent such an explanation, the employee’s comments to the EO Director and his marking on the form are not sufficient to demonstrate a direct conflict between the Union’s statutory right to be present and any individual rights, including the right to complete relief in the EEO process. Thus, we find that the Respondent had no basis for relying on the employee’s comments to find such a direct conflict and to thereby deny the Union’s statutory right to notice and an opportunity to attend.

In addition, at the hearing, the employee testified that he did not want the Union to be present at the mediation session because he: (1) was upset that the Union previously had refused to take one of his grievances to arbitration; and (2) believed that the Union was entitled to be present and the mediation and was curious to see how the Respondent would react to his objection. See Judge’s Decision at 13. As discussed above, the Judge found that these alleged motivations were “of no consequence[]” because the employee did not communicate them to the Respondent. Id. at 15. Even assuming that it is appropriate to consider these alleged motivations in assessing whether there was a direct conflict between the respective rights of the Union and the employee, they do not establish the requisite direct conflict. In this connection, the employee’s testimony demonstrates a personal preference that the Union not be present, as well as a desire to see how the Respondent would respond to his objection. It does not cite any individual right or explain how the Union’s presence would interfere with, must less directly interfere with, any right. Moreover, we note that, during the hearing, the employee specifically testified that his objection was “not based on any concerns over confidentiality, privacy interests, or that the Union’s presence would disrupt the mediation process.” Id. at 13. Thus, to the extent that it is appropriate to consider the employee’s hearing testimony, that testimony does not demonstrate the requisite direct conflict between any identified employee rights and the Union’s statutory right to notice and an opportunity to attend the mediation session.

For the reasons discussed above, we find that, in the particular circumstances of this case, the employee’s objection to the Union’s presence at his mediation session did not demonstrate a direct conflict between any identified, individual right of the employee and the Union’s statutory right to notice and an opportunity to be present.[6] As there is no dispute that the Respondent failed to give the Union notice and an opportunity to be present, as required by § 7114(a)(2)(A) of the Statute, we conclude that the Respondent violated § 7116(a)(1) and (8) of the Statute as alleged in the complaint.

V. Order

Pursuant to § 2423.41(c) of the Authority’s Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona, shall:

1. Cease and desist from:

(a) Failing or refusing to provide the American Federation of Government Employees, Local 2924 (Union) advance notice and the opportunity to be represented at formal discussions with bargaining-unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement negotiations pertaining to formal Equal Employment Opportunity (EEO) complaints filed by bargaining-unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured to them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Provide the Union advance notice and the opportunity to be represented at formal discussions with bargaining-unit employees concerning mediation of formal EEO complaints.

(b) Post at the United States Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona, copies of the attached Notice to All Employees on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Commander, Davis-Monthan Air Force Base, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered.

(c) Pursuant to § 2423.41(e) of the Authority’s Regulations, notify the Regional Director of the Denver Region, 1391 Speer Boulevard, Suite 300, Denver, Colorado, 80204, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT fail or refuse to provide the employees’ exclusive representative, the American Federation of Government Employees, Local 2924 (Union), advance notice and the opportunity to be represented at formal discussions with bargaining-unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement negotiations pertaining to formal Equal Employment Opportunity (EEO) complaints filed by bargaining-unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL provide the Union advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal EEO complaints.

_________________________________________

(Agency)

Dated: __________________ By: _______________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of the posting, and must not be altered, defaced, or covered by any other material.

The disposition of this case requires us to consider NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU) and Dep’t of the Air Force, 436th Airlift Wing, Dover AFB v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover). In NTEU, the Court identified two possible scenarios: First, a “conflict” between the rights of an employee claiming discrimination and the interests of the bargaining unit; and second, a “direct conflict” between the rights of the employee claiming discrimination and the rights of the union under 5 U.S.C. § 7114(a)(2)(A). The Court noted that either type of conflict should be resolved in favor of the employee. NTEU, 774 F.2dat 1189 n.12.*

Years later, in Dover, the Court referred back to the teaching of NTEU but found no “direct conflict” between the union’s § 7114(a)(2)(A) rights and the employee’s rights largely because the employee did not object to a union representative being present at the mediation of the employee’s discrimination claim. Dover, 316 F.3d at 286-87. In Dover, it was the agency -- not the employee -- that asserted that the employee’s Title VII rights took precedence over the union’s rights, and the agency did so to “evade” its obligations to notify the union of the mediation session. Id. at 286. The instant case is materially different from Dover; here, the record establishes that the employee made it clear that he did not want the Union to be represented at his mediation session. Judge’s Decision at 14-15.

My colleagues find that the employee’s testimony here does not “demonstrate[]” a “direct conflict” with the rights of the Union. Majority, slip op. at 9. That determination places a burden on the employee that was not intended or required by the Court in either NTEU or Dover. Unlike the Majority, I do not agree that the employee is required to meet any further burden once he asserts in clear and unmistakable terms that he does not want the Union present during his mediation session. The record demonstrates that the employee chose not to be represented by the Union in the processing of his discrimination complaint; that he agreed to participate in mediation in an attempt to resolve the complaint; that he told a management official that he did not want the Union to be present at the mediation; and that he signed a form stating specifically, “I object to having the union’s presence at the mediation and request they not be present.” Judge’s Decision at 3-4.

The circumstances of this case demonstrate at least two specific “conflicts” between the employee’s rights and those of the Union. First, the employee chose not to have the Union present as an exercise of his rights under Title VII to seek his own resolution of his own claim of discrimination. Second, the employee was free to “refrain from” assisting the Union in the exercise of the Union’s § 7114(a)(2)(A) rights. 5 U.S.C. § 7102.

As the Court said in Dover, § 7114(a)(2)(A) “does not yield a clear and unambiguous interpretation.” Dover, 316 F.3d at 285. Consequently, the job of interpreting and applying this provision in particular circumstances is left to the Authority. Our mandate from Congress is to do so “in a manner consistent with the requirement of an effective and efficient Government.” 5 U.S.C. § 7102. To force parties to a mediation session to suffer the presence of an unwanted third party is to diminish the efficiency and the likelihood of success of the mediation session. Thus, interpreting § 7114(a)(2)(A) as the Majority does -- to require an employee and his employing agency to include an unwanted union representative in an EEO mediation session -- is inconsistent with the most fundamental goal of our Statute.

I would deny the General Counsel’s exceptions and dismiss the complaint.

[1] Member Beck’s dissenting opinion is set forth at the end of the decision.

[2] In this respect, the Judge specifically credited the testimony of the Respondent’s EO Director that the employee “directly told her that he did not want the Union present for the scheduled mediation.” Judge’s Decision at 3 n.3. In so doing, the Judge rejected the employee’s denial that such a conversation had taken place. See id.

[3] Section 7116(a) of the Statute provides, in pertinent part, that it is a ULP for an agency “to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter[,]” or “to otherwise fail or refuse to comply with any provision of this chapter.” 5 U.S.C. § 7116(a)(1), (8). Section 7114(a)(2)(A) of the Statute provides, in pertinent part, that:

[a]n exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at . . . any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]”

[4] As discussed further below, the employee testified at the hearing that he did not want the Union present becausehe was upset that the Union previously had refused to take one of his grievances to arbitration, and because he believed that the Union was entitled to be present and he was curious to see how the Respondent would react to his objection. See Judge’s Decision at 13.

[5]In Luke I, the Authority noted the judge’s undisputed finding that the employee did not object to the union president’s presence at EEO settlement discussions. See 54 FLRA at 733. However, the Authority did not hold that an employee’s mere objection, without more, would provide a sufficient basis for denying a union’s statutory right to be present at EEO settlement discussions.

[6] The dissent’s claim that this case demonstrates “at least two specific ‘conflicts’ between the employee’s rights and those of the Union” is unpersuasive. Dissent, slip op. at 13. As for the first asserted conflict – that the employee “chose not to have the Union present as an exercise of his rights under Title VII to seek his own resolution of his own claim of discrimination[,]” id. – there is no basis to conclude that the Union’s presence during the mediation session would affect the employee’s pursuit of his discrimination claim. In this regard, the Union would not attend as the employee’s representative and would have no right to interfere with settlement efforts. As for the second asserted conflict – that the employee had the right under § 7102 of the Statute to “refrain from” assisting the Union – no party has raised this statutory argument. In addition, there is no basis for concluding that an employee does anything to “assist” a union when an agency complies with its obligation under the Statute to afford a union its right to attend a formal discussion.

.

* The unfair labor practice charge in NTEU asserted that the Agency violated § 7114(a)(2)(A) by failing to notify the Union of its interview of bargaining unit employees in preparation for a hearing before the Merit Systems Protection Board. NTEU, 774 F.2dat 1183.